CIVIL PROCEDURE: BACK TO BASICS 21: PLEADING IN THE ALTERNATIVE: BINKS -v- SECURICOR

Can a claimant plead two alternative cases? This is an issue that often arises in personal injury litigation, where the basic facts are disputed. A claimant may wish to argue that the defendant remains liable – even on the defendant’s account of the case.

“I see nothing in that Part, or in Lord Woolf’s report, to indicate an intention to exclude altogether the possibility of pleading factual alternatives, particularly where as here the alternative is raised by the defendant’s own case. So long as the pleading makes clear that the alternative is disputed on the facts, there is nothing untruthful or dishonest in the claimant advancing the contention, that, if it is upheld, the defendant is nonetheless liable.”

BINKS -v- SECURICOR

In Binks v Securicor Omega Express Ltd. [2003] EWCA Civ 993 the claimant pleaded liability on a certain set of facts, involving the claimant fallling off a conveyor belt was a van was being driven. The judge found a different set of facts to that alleged by the claimant. The claimant sought permission to amend on the basis that the defendant was liable even on these factual findings. The trial judge refused permission to amend. The claimant was successful on appeal.

CAN A CLAIMANT SIGN A CONTRADICTORY STATEMENT OF TRUTH

The first issue the Court of Appeal considered was whether it was possible, or necessary, for the claimant to sign amended Particulars of Claim with a statement of truth.

The Statement of Truth point

When Mr. Hirst addressed the judge at the conclusion of the evidence he did so expressly on the basis that he was not seeking permission to amend the particulars of claim because Mr. Binks was not in a position to sign a statement of truth in relation to the alternative case. The requirement that a statement of case be verified by a statement of truth was an innovation introduced by the Civil Procedure Rules. The material provisions are in part 22. Rule 22.1 provides as follows:

“(1) The following documents must be verified by a Statement of Truth –

(a) a statement of case…..

(2) Where a statement of case is amended, the amendments must be verified by a statement of truth unless the court orders otherwise…..

(4)….a statement of truth is a statement that –

(a) the party putting forward the document; or

(b) in the case of a witness statement, the maker of the witness statement,

believes the facts stated in the document are true.”

Mr. Hirst took the view that these requirements did not permit Mr. Binks to attach a statement of truth to an amended document which was wholly inconsistent with his evidence. Mr. Baldock (who also appeared in the court below and before us) did not advance any contrary view to the judge. The judge clearly adopted that approach in paragraph 25 of his judgment when he said:

“Pleadings nowadays have to bear a statement of truth and it is quite clear that the Claimant is in no position to sign a statement of case which would advance wholly conflicting versions of his complaint against the Defendant.”

In my judgment it was erroneous for the judge to express himself in that way. For one thing, rule 22.1 (2) enables the court to dispense with verification by a statement of truth when a statement of case is amended. It does not specify circumstances in which the power of dispensation might arise but I take the view that amendment to plead in the alternative a case derived from an opponent’s documents, pleadings or evidence is capable of being such a case. To the extent that the practice direction to part 17 suggests otherwise, I give precedence to the rule over the practice direction. Moreover, I do not accept that the purpose or effect of part 22 is to exclude the possibility of pleading inconsistent factual alternatives. In this, I take comfort from the judgment of Patten J in Clarke v. Marlborough Fine Art Limited 2002 1 WLR 1731 at paragraph 30. It is true that Patten J was not concerned with a dishonest claimant who was clinging to a false account and a defendant whose witnesses, at least on one view, were providing evidence for an alternative factual basis of liability. Nor was he concerned with other possible scenarios that readily spring to mind – for example, a claimant in a personal injury case who simply does not know what happened but relies on a independent witness who proves unreliable in circumstances where the defendant’s evidence nevertheless provides him with a positive case; or the claimant who honestly believes in, because he has wrongly convinced himself of, the truth of his case, but who can nevertheless advance a case on the basis of the defendant’s pleadings or evidence. Such scenarios and the history of the present case dispose me to the view that it is necessary to adopt a broader approach to Part 22. In my judgment, it does not in all cases prevent a party from submitting or amending a pleading which includes an allegation which he is not putting forward as the truth, provided that there is an evidential basis for it. If it is in the form of an amendment, then, as I have said, it may be appropriate for the court to permit it without requiring a statement of truth. Moreover, I do not consider it objectionable in principle for a claimant to advance an alternative case based on material put forward by his opponent. In such circumstances, it may be possible for him append a statement of truth, suitably drafted, making it clear that whilst his primary case is not an assertion of the truth of his opponent’s account, if the court find that to be the truth, he will seek to rely upon it as an alternative basis for liability. There is some support for this approach in Kelly v. Chief Constable of South Yorkshire Police[2001] EWCA Civ 1632. There, at the conclusion of the evidence, counsel for the claimant sought permission to amend particulars of claim so as to include an alternative factual basis of liability based not on her own evidence but on that of one of the police officers with whom she had been struggling in a car. Neither at first instance nor in the Court of Appeal does there appear to have been a discussion of Part 22. Nevertheless, May LJ concluded (paragraph 18) that the grounds for refusing permission were not sufficient to outweigh the justice of permitting the claimant to advance an alternative case based upon, or close to, the defendant’s evidence. Agreeing, Sedley LJ said (paragraph 21):

“It is not uncommon for a version of the facts to emerge as a possible deduction from the evidence which has so far been neither side’s pleaded case but which one side wants now to plead as an alternative basis, either of liability or of defence. In my experience it is normal and proper practice in the County Courts, and in the High Court too, to allow an amendment to such effect at the conclusion of the evidence if, on any terms which are appropriate as to costs or recall of witnesses, this can be done without injustice to the other party or parties.”

I acknowledge that the factual circumstances were different from those of the present case. On the other hand, if an unduly narrow view were taken of Part 22, it is difficult to see how the Court of Appeal could have come to the conclusion it reached.

Although I accept that the purpose of Part 22 is to deter or discourage claimants from advancing a case which is inherently untrue or wholly speculative (a purpose which will never be wholly achieved), I do not accept that its purpose extends to the possibility of relieving of liability a defendant whose own evidence may establish a cause of action against him. That would not be consistent with the overriding objective of dealing with a case justly (CPR 1.1(1)).

All this leads me to the conclusion that the judge in the present case misdirected himself on the statement of truth point. He deserves our sympathy because, as Mr. Hirst candidly but haplessly concedes, it was he who set the misdirection ball rolling.

THE JUDGMENT OF LORD JUSTICE CARNWATH

I agree. I would only add that, if CPR 22.1 had the effect for which Mr Baldock contends, it would have represented an even more radical change in the pleadings rules than appears to have been contemplated by Lord Woolf’s report.

The tradition of pleading in the alternative is a long one. Of course it can be taken too far, as Sir Robert Megarry memorably illustrated in Miscellany-At-Law, p46.

“Not all that is licit is prudent. Thus, pleading in the alternative is an expedient which, like most expedients, can be carried too far. One example concerns an action brought against a neighbour for damaging a borrowed pony cart. The local sea lawyer advised the defendant to plead ‘that he had never borrowed the cart; and that the cart was damaged and useless when he borrowed it; and that he had used the cart with care and returned it undamaged; and that he had borrowed the cart from some person other than the plaintiff; and that the cart was owned by the defendant himself; and that the plaintiff had never owned any cart, whether pony or otherwise; and so on, and so on.’ Scrutton LJ once spoke unkindly of a pleading which was ‘obviously framed to take the benefit of anything that may turn up, without any clear idea of the case which the plaintiff is alleging.’ Six centuries earlier, when pleadings were still oral, Bereford C.J. had impartially castigated counsel on both sides. ‘Get to your business. You plead about one point, they about another, so that neither of you strikes the other.'”

No-one, of course, would seek to defend those examples as part of a modern system.

The relevant part of Lord Woolf’s Interim Report on Access to Justice was Chapter 20 (“Pleadings/Statements of Case”), where he noted that although pleadings are

“often mis-used and frequently fail to serve their intended purposes they will continue, with changes, to have an important role in the proposed new procedure. That role is to set out the facts relied upon so that the Court and the parties can ascertain what the dispute is about and the Court can take appropriate decisions about its management.”

The proposal for Statements of Truth was dealt with at paragraph 30, which said simply:

“All pleadings would have to conclude with a declaration, by or on behalf of the litigant, of belief in the accuracy and truth of the matters put forward.”

I agree that one purpose of CPR Part 22 is to deter or discourage claimants from advancing a case which is inherently untrue or wholly speculative. However, I see nothing in that Part, or in Lord Woolf’s report, to indicate an intention to exclude altogether the possibility of pleading factual alternatives, particularly where as here the alternative is raised by the defendant’s own case. So long as the pleading makes clear that the alternative is disputed on the facts, there is nothing untruthful or dishonest in the claimant advancing the contention, that, if it is upheld, the defendant is nonetheless liable.

THE JUDGMENT OF LORD JUSTICE PILL

This judgment is interesting in that it suggests that the issue of pleading in the alternative is something that should be considered at an early stage, possibly at the Case Management Conference.

For the employers, Mr Baldock submits that the effect of Part 22 of the CPR is that a claimant in a personal injury action whose pleaded account of how the accident happened is held to be untruthful cannot succeed unless he has repented of his untruthfulness. For the reasons given by Maurice Kay J, I do not accept that submission. The courts should of course put a premium on the giving of truthful evidence but there will be cases in which to fail to find for an untruthful claimant would be to do an injustice. Lies may sometimes be told to bolster what is already a good case or to conceal unworkmanlike conduct. In this case, the claimant was liable to be dismissed from his employment if he admitted riding the conveyer belt. Where, as in the present case, the account accepted by the judge reveals a clear case of negligence by the employers it may sometimes be permissible to permit a claimant to succeed on the basis of a version of events which he has denied. The effect of Part 22 is not to provide otherwise.

I also agree with Maurice Kay J that discretion to argue the alternative case should have been exercised in the claimant’s favour in the circumstances of this case. The issue of fact was whether the accident happened in the way described by the claimant in evidence or the way he was alleged to have described it to Mr Tovey. The latter account, which the judge accepted, was pleaded by the employers (though not as contributory negligence) and properly put to the claimant in cross-examination. It was open to the employers to call further evidence, if they saw fit, to support their pleaded account. Maurice Kay J has set out the circumstances in detail. I do not consider that the employers have been unfairly prejudiced in this case either by their inability now to call further evidence or by this Court coming to conclusions upon the findings of fact made by the judge. Nor do I not consider that questions of proportionality arise in this case upon the question whether to allow a decision on the alternative account. This Court should proceed accordingly. Since the claimant is permitted to argue the alternative account, the employers should be permitted to argue contributory negligence based on it.

There is not doubt that, on the evidence, there was a plain breach of duty by the employers in allowing, by their employees, the vehicle to be driven off while the claimant was still inside. The driving off was causative of the claimant’s fall. He too was negligent. Riding on the conveyor was prohibited and was foolhardy as he must have known. On the other hand, it was a serious default by the employers to permit the vehicle to be moved in the circumstances. The parties should bear equal responsibility for the consequences of the fall.

Faced with conflicting accounts as to how the accident happened, especially when both come, or are alleged to come, from the claimant himself, those advising a claimant are in a difficult position. In this case, the judge too was put in a difficult position at the close of the evidence. It will often be appropriate to raise the procedural problem at a case management conference or, failing that, at the beginning of the hearing so that consideration can be given to what are the appropriate procedural steps in the circumstances.”

HOW SHOULD THE TRIAL JUDGE HAVE EXERCISED THEIR DISCRETION?

This was dealt with in the judgment of Mr Justice Maurice Kay.

It seems from paragraphs 25 and 26 of the judgment below that the judge, having adopted the proposition that amendment was out of the question, proceeded to consider Mr. Hirst’s submission that the overriding interest of doing justice in a manner fair to all parties requires that the court should permit the alternative case to be put in any event. Paragraph 26 is then a consideration of the matters which disposed the judge to the conclusion that it would be wrong to allow the case to be put in such a manner. To a substantial extent, the considerations in paragraph 26 overlap with the considerations which would have had to have been considered in relation to an application for permission to amend. I accept Mr. Baldoock’s submission that there may have been other considerations including ones of proportionality in relation to costs relative to quantum. However, at that stage, and until his medical expert had been rejected by the judge, the claimant’s case was that his claim was worth about £80,000.

Essentially, paragraph 26 of the judgment is to the effect that Securicor would have been prejudiced by allowing the alternative case to be put because they would or might have approached the evidence differently if they had known that liability on the alternative basis had been on the agenda. However, in my judgment the reasoning in paragraph 26 is flawed. It is obvious that any further cross examination of Mr. Binks would only have elicited replies consistent with his untrue case. To use him as a sounding board in relation to contributory negligence on the alternative basis of liability would not have been particularly meaningful. More importantly, the judge’s view that “serious consideration would have had to be given to the calling” of Mr Watson or Mr. Tokarcyk is, in my judgment, untenable. As I understand it, Mr. Tokarcyk was no longer available. He was a temporary employee and it is thought that he had since died. Of course, Mr. Watson had been in a position to give important evidence. However, it is inconceivable that he would have been called on behalf of Securicor. He had made a statement about a week after the accident which is significant more for what it omits that for what it includes. It makes no mention of the fact that (as the judge found) he had signalled the driver to move off whilst Mr. Binks was still in the van. It stated “I did not see Mr. Binks riding on he belt” although Mr. Tovey was able to give evidence that Mr. Watson had informed him that Mr. Binks had been riding on the conveyor belt. In addition, Mr. Tovey gave evidence that there had been a discussion between himself and Mr. Watson as to whether an inaccurate and false account of the accident should be given. Mr. Watson had suggested to Mr. Tovey that they should present a version of the accident that Mr. Binks had been standing on the loading dock and had fallen from there to the ground. It seems that Mr. Watson gave Mr. Tovey the impression that his motive for such falsification was to protect Mr. Binks who was on a final warning, resulting from absences from work, and was therefore vulnerable for dismissal for riding on the conveyor belt, a practice that was forbidden by conspicuous notices. On the other hand, an alternative reason for Mr. Watson’s interest in falsification would have been to conceal his own negligence. For all these reasons, I accept Mr. Hirst’s submission that, as a witness for Securicor, Mr. Watson would have been a liability and would not have been called.

I am persuaded to the extent that the judge addressed matters which impacted on his discretion, his approach was flawed. On the one hand, he found potential prejudice to Securicor on an unsustainable basis. On the other hand, he did not have regard to the wider interests of justice and the extent to which their pursuit might be accompanied by consequential provision as to costs. I reach this conclusion with a degree of reluctance because this court is always slow to interfere with the decisions of a trial judge taken in the broad context of case management. However, as I consider the approach in this case to have been plainly erroneous, such interference is unavoidable.

THE RESULT

Judgment was given to the claimant with 50% contributory negligence, the claimant was awarded 50% of the costs of the trial and the whole of the costs of appeal.